An appeal court has given native protesters the green light to occupy Douglas Creek Estates for at least another month without fear of being arrested.
A three-judge panel of the Ontario Court of Appeal yesterday ruled a contempt order against the occupiers ran out on July 5 when the province bought the Caledonia property from Henco Industries Limited.
"The province owns Douglas Creek Estates," the panel wrote. "It doesn't claim the protesters are on its property unlawfully. It is content to let them remain. We see no reason why they should not be permitted to do so."
The judges rejected Ontario Superior Court Justice David Marshall's opinion the protesters had to be evicted from the site, which they've occupied for six months, to restore the rule of law in Caledonia.
Haldimand Mayor Marie Trainer was not pleased with the panel's decision. She said it won't sit well with Caledonia residents who would like the occupiers to leave until ownership of the property is determined.
"The residents of Caledonia, of course, are going to be upset, but they (people in authority) don't care about that," the mayor said last night, explaining she is still hearing complaints occupiers are "taunting and harassing" residents in a neighbouring subdivision. "This is going to make people have less confidence in what's happening. It's very frustrating to them. It seems no one is listening to them."
In a judgment earlier this month, Marshall said the government should refuse to negotiate with native leaders until court orders are respected and the occupation has ended.
As part of an order issued Aug. 18, Marshall stated an injunction obtained by Henco Industries in March won't be dissolved until the protesters are removed.
At the request of the Attorney General of Ontario, the appeal court stayed this, pending a full appeal of Marshall's order, which will be heard Sept. 25 and 26.
Ken Hewitt, head of the Caledonia Citizens Alliance, said he was disappointed by the ruling. His group has insisted natives leave the site until ownership is determined.
"It's in the best interest of both communities for the occupation to end," Hewitt said. "The longer the occupation continues, the probability of someone getting hurt can arise."
The government argued this order would cause irreparable harm and undermine efforts to resolve the conflict peacefully.
"The unchallenged evidence is that a court order that makes the current limited occupation a contempt of court will only escalate tensions in the community, put public safety at increased risk, and adversely affect land claims negotiations," the appeal court stated.
"The uncontradicted evidence of the OPP is that a stay of the injunction order will reduce the risk of harm to the community. The province should be permitted to determine what level of occupation and what use of its own property best promotes the public interest in these difficult times."
The judges said they understood Marshall's concern about the rule of law.
"It has been disruptive and profoundly affected the relationship between residents and the Aboriginal community. However, the current occupation does not obstruct public road access," they wrote.
"If protesters cause a nuisance or other disturbance affecting neighbouring lands or residents of Caledonia, then action may be required. But no evidence was presented to us of any current incident."
Trainer couldn't believe it. She noted a government appointed lawyer met with her, councillors, residents and others to get "a feeling for what's going on" in the town. "I guess it's going in one ear and out the other," she added.
Marshall had directed the Attorney General to deal with contempt matters that occurred before July 5 and to report back to him.
Government lawyers argued this paragraph would interfere with the Crown's independence and prosecutorial discretion. But the judges rejected the Crown's argument this clause would cause irreparable harm.
They decided the order only required the Crown to keep the judge and public informed about developments relating to outstanding contempt orders.